Category Archives: Knowledge

Contracts quintessential first-year course: Law school professor makes his case

WMU-Cooley Law School Professor Otto StockmeyerBlog author WMU-Cooley Distinguished Professor Emeritus Otto Stockmeyer presented a paper at the 2017 annual conference of the Michigan Academy of Science, Arts & Letters, held March 10, 2017, on the campus of Western Michigan University. He titled his presentation “Reflections on Teaching the First Day of Contracts Class.” Professor Stockmeyer offered his thoughts on why he believes Contracts is the most significant course in the first-year curriculum, why the study of contract law should begin with the subject of remedies, and why Hawkins v. McGee (the “hairy hand” case made famous by the book and movie versions of The Paper Chase) makes an ideal starting point.

In my view, Contracts is the quintessential first-year course. It presents an excellent introduction to the common law and legal reasoning. The course is foundational to several upper-level courses, and the best predictor of law school success.  Lawyers have reported that they use Contracts in their practice almost twice as much as any other law school subject.

Although traditionalists begin the course with offer and acceptance, there are both pedagogical and practical reasons to start with remedies. Studying remedies is not easy going for beginning students, who tend to hate working with numbers. But they tell me that they like difficult topics placed early in the term so they have longer to process the material.

The most important reason to start with remedies is the opportunity to begin the first day’s class with Hawkins v. McGee.

Here are my Top Ten reasons why:

10. The opinion immediately demonstrates to beginning students their need for a law dictionary. The first paragraph alone contains five legal terms.

9. The opinion shows how judges sometimes load their opinions with empty overstatements, such as “clearly” and “obviously” when the facts were neither.

8. The opinion demonstrates the process of analysis that courts employ when direct legal authority is lacking.

7. The opinion allows an early exploration of some distinctions between tort (medical malpractice) and contract (promise of 100 percent success) in a context readily understood by beginning students.

6. The opinion revolves around two of the central themes in Contract law: the objective theory of assent and the expectation objective of contract remedies.

5. The opinion is an excellent introduction to remedies and the difference between tort and contract damages.

4. The opinion illustrates that general principles are easier to state than to apply.

3. The opinion has more poignancy than the commercial disputes that will follow.

2. The case has a rich subsequent history that can be explored as time permits.

1. Three words: The Paper Chase. Many students will have read the book or rented the movie. They expect Contracts to begin with a study of the “hairy hand” case. Disappoint them the first day and they may question their choice of law schools.

The Paper Chase

The movie version of this law school classic contains two scenes that I’ve used in my class. The first is Professor Kingsfield’s ‘skull full of mush’ explanation of why law schools use the Socratic method. That needs to be addressed the first day.

The second is Kingsfield’s encounter with a student, Mr. Hart. After recapping the facts of Hawkins v. McGee, Kingsfield asks, ‘Now Mr. Hart, what sort of damages do you think the doctor should pay?’

I then would call on several students and ask whether Mr. Hart gave the right answer (no, he didn’t). The ice having been broken, another term of Contracts has been successfully launched.

Read the full text of Professor Stockmeyer’s paper on the Social Science Research Network.

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So, You Want to Be a Criminal Lawyer? Seven Things Your Law School Should Offer

krause-phelan_tonyaBlog author WMU-Cooley Law School Auxiliary Dean and Professor Tonya Krause-Phelan teaches Criminal Law, Criminal Procedure, Defending Battered Women, Criminal Sentencing, and Ethics in Criminal Cases. She coaches national mock trial and moot court teams with the West Michigan Defenders Clinic and frequently appears as a commentator on numerous radio, television, print, and internet media sources regarding criminal law and procedure issues.

When I attended law school in the late ’80s, becoming a criminal practitioner was probably the least desired career choice a law student could make. At that time, many law students, law professors, and practitioners alike thought that the only people who would “settle” for a job as a public defender or as a prosecutor were those who could not get a job with a mega-firm or as in-house counsel for a Fortune 500 company.

Because I knew when I went to law school I wanted to be a public defender, I followed my passion instead of conventional wisdom. I was fortunate enough to land a job right out of law school as a public defender.  Eventually, I went into private practice, where I specialized in criminal defense. But, I never gave up my passion for indigent defense, and as a result, I continued to accept court-appointed cases. Throughout my many years of practice, criminal practitioners continued to be viewed as a sub-category of lawyers.

But, nothing could be further from the truth. Criminal practitioners are some of the most passionate, dedicated, and talented lawyers in the profession. After all, practicing in the area of criminal law is not for the faint of heart; it is one of the most demanding, challenging, and specialized areas of practice with clients’ lives and liberty literally hanging in the balance. With everything known today about DNA exoneration cases, mistaken identification cases, police shootings, and other systemic and ethical challenges facing the criminal justice system, people have changed their minds about public defenders, criminal defense lawyers, and prosecutors. Today people are actually deciding to attend law school for the specific purpose of becoming a criminal practitioner.

For those who want to become a criminal practitioner, they should look for a law school that does everything possible to adequately prepare its students for the rigors of a criminal practice. Whether a law school advertises itself as a “practice ready” school or not, several factors foretell a school’s pledge to preparing its students for criminal practice. Prospective law students interested in practicing criminal law should consider the following factors:

  1. Experienced Faculty: Professors who have practiced in the field are uniquely qualified to provide students with a practical context in which to learn substantive criminal law. Learn whether the professors who teach Criminal Law and Procedure practiced criminal law prior to becoming full-time faculty members.  Also, determine whether the school’s adjunct faculty are criminal practitioners. By hiring criminal law practitioners to serve as adjunct faculty, a law school demonstrates its dedication to keeping its curriculum current and relevant.
  2. Criminal Law-based Clinics: Ensure the law school hosts a clinic that focuses on criminal law, usually public defender or prosecutor clinics. Because many states allow students to work under the direct supervision of a licensed attorney, this type of clinical experience provides students with the ability to apply the knowledge and skills they have learned in the classroom to real-life, real-time clients.
  3. Innocence Project: Several law schools run Innocence Project programs. In these programs students have the responsibility to investigate and process cases for individuals who have been wrongfully convicted. Nothing speaks louder about a law school’s commitment to the efficacy of the criminal justice system than its commitment to representing individuals who should not have been convicted and need assistance in gaining their freedom.
  4. A Strong Skills-based Program: Law schools that are committed to developing strong criminal practitioners will also have a strong skills-based program. Look at the classes the law school requires students to complete. A curriculum that requires several research and writing, trial and appellate advocacy, and other skills-based courses demonstrates that the school is preparing its students for practice.
  5. Community Collaboration and Engagement: Look to see if the law school regularly engages with community organizations and events.   By hosting and participating in events that foster interaction with community organizations, local leaders, and members of the criminal justice system, a law school demonstrates a strong responsibility to fostering and improving an ethical and dedicated criminal justice system.  Look to see if the law school has hosted or participated in round-table and panel discussions, town hall-style meetings, and lecture series that include such people as police officers, judges, criminal practitioners, and experts within the criminal justice system.
  6. Proximity to Local Courthouses, Legal Community, and Organizations: If a law school is close to courthouses, law firms, and other legal entities, law students will more likely augment their educational opportunities by visiting local courthouse, watching trials and other legal proceedings, connect with members of the bar, and become student members of local bar organizations, events, and public service opportunities.  Observing how lawyers conduct cases helps students develop their own skills.
  7. Strong Alumni Base: Finally, many law schools provide prospective students with a list of alumni. Ask the law school to provide you with a list of alumni who are practicing criminal law and contact them. Not only can alumni answer questions about practicing criminal law, they can discuss whether the school adequately prepared them for criminal practice.  Ask their advice regarding which elective classes to take, clinics or externships to apply for, and which extra-curricular activities most adequately prepared them for criminal practice.

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Law Profs Offer Students a Dozen Guide Books

Law school is a transformative experience; a once-in-a-lifetime privilege to acquire hugely useful knowledge and skills. It also isn’t easy. To help students navigate the law curriculum for the best effect, and graduates enter fruitful careers, law professors gathered to write a dozen guide books.

books

Law professors are scholars. Yet they can also devote their writings to helping students and graduates where most needed.

For example, the first book Going to Law School: Preparing for a Transformative Experience helps students confirm their interest in law school, choose a school, and then prepare for the best start. A Law Graduate’s Guide: Navigating Law School’s Hidden Career & Professional-Development Curriculum then shows students how to shape their studies to connect with law careers.

Dear J.D.: What to Do with Your Law Degree helps students choose a practice field and law or law-related career. Preparing for the Bar Exam: A Comprehensive Guide to Plans, Programs, Content, Conditions, & Skills helps students and graduates pass the bar exam. How to Get a J-O-B: An Eight-Step Program for Lawyer Employment helps graduates with their job search.

Entrepreneurial Practice: Enterprise Skills for Lawyers Serving Emerging Client Populations shows graduates how to develop a law practice of their own, while Are You Legal? A Personal Legal Audit & Empowerment Tool shows graduates how to audit a client’s matters for opportunities to provide helpful law services.

How to Build a Practice with Pro Bono shows graduates how to help 10 disadvantaged populations, while Cross-Cultural Law Service: A Framework for a Lawyer’s Professional Skill shows graduates how to provide services to disadvantaged populations. Lawyer Finances: Principles & Practices for Personal & Professional Financial Success shows students and graduates how to manage finances as a lawyer and in a law firm.

Top 100 Questions Friends & Family Ask a Lawyer shows students and graduates how to answer the curious law questions of a family member or friend. And finally, The Faithful Lawyer: Flourishing from Law Study to Practice shows students and graduates how to integrate faith for a sound and balanced professional career.

Most of these books are free to students in online form. Professors also give away print copies, or anyone can order them online. While most of the books are priced at cost, professors donate any proceeds to the law school’s scholarship fund.

books

These resources, a decade in the making, show just how committed law professors can be to student success, not just in the classroom, but also outside the classroom in academic advising and career support.

nelson millerBlog author Nelson Miller is the Associate Dean and Professor at WMU-Cooley’s Grand Rapids campus. He practiced civil litigation for 16 years before joining the WMU-Cooley faculty. He has argued cases before the Michigan Supreme Court, Michigan Court of Appeals, and United States Court of Appeals for the Sixth Circuit, and filed amicus and party briefs in the United States Supreme Court. He has has many published books, casebooks, book chapters, book reviews, and articles on legal education, law practice, torts, civil procedure, professional responsibility, damages, international law, constitutional law, university law, bioethics, and law history and philosophy. He also teaches law classes on the Kalamazoo, Michigan campus of Western Michigan University.

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WMU-Cooley Law School Celebrates Constitution Day 2016

Each year, in September, WMU-Cooley Law School joins the nationwide focus on the U.S. Constitution, commemorating the formation and signing of the historic document by focusing on a number of timely political and electoral issues. The official annual Constitution Day celebration takes place on Sept. 17, with this year’s observation date falling on Friday, Sept. 16. At WMU-Cooley, the celebration often gets extended, and this year continues into the following week.

beery_brendan-beeryThe WMU-Cooley campus in Tampa will celebrate Monday, Sept. 19, noon-1 p.m. with a political discussion. With election day less than two months away, panelists will discuss Clinton vs Trump as part of the law school’s annual Constitution Day activities. Constitutional Law expert and professor Brendan Beery, recent winner of the Stanley E. Beattie Teaching Award, will lead discussions regarding how results of the election will affect the U.S. Supreme Court and the Constitution.  During the discussion, Beery will analyze how legal issues, such as abortion, affirmative action and LGBT rights, could change depending on who is elected president.

warrenIn Auburn Hills,  the events take place Friday, Sept. 16. In honor of Constitution Day, the Hon. Michael Warren of Oakland County’s Sixth Circuit Court will present “The Presidency: Electors, Elections & Campaigns 1789-Today” at 12:30 p.m. Friday, Sept. 16. Following the presentation Warren will lead a discussion about how the Constitution’s founders would react to Clinton vs Trump.

ford-statueIn Grand Rapids, events are focused primarily on the WMU-Cooley student audience. In observance of Constitution Day, WMU-Cooley Law School is holding a Constitution Day Scavenger Hunt on Saturday, Sept. 17  at the Gerald R. Ford Presidential Museum.  Participants will pick up a list of questions from Professor Devin Schindler or Professor Victoria Vuletich.  Participants will visit the new exhibits at the museum the morning of the 17th, using the exhibits to answer the list of questions.  Professors Schindler and Vuletich will then meet the participants for lunch to discuss Watergate and the pardon at a local restaurant.  Small prizes will be awarded  to the first, second and third place winners.

In Lansing, the celebration will take place later in the month with campus organizers currently working on finalizing activities.

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Labor Day Reminder of the Absolute Equality of Rights Between Employer and Laborer

As we approach the unofficial end of summer with the Labor Day holiday weekend, it’s good to take time and look back at a significant and growing holiday that occurred earlier this season — Juneteenth, which celebrates the issuance of the Emancipation Proclamation. Although the primary focus of the proclamation was, of course, to end slavery, when Gen. Gordon Granger presented the proclamation to the citizens of Texas, the rights of laborers were expanded to all workers. “This involves an absolute equality of rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and free laborer.”

juneteenth day background

This summer, WMU-Cooley students involved in the law school’s Sixty Plus, Inc., Elderlaw Clinic hosted their own Juneteenth Celebration with a day to honor our elderly and their contribution to labor and society.

Luis Vasquez, a third-year law student who was born in Guatemala and raised in Texas, said, “I found this event very interesting. Not only did I learn about some of the history surrounding Juneteenth, but I got to be a part of the festivities. It was my first time attending a Juneteenth celebration. The people, food, and atmosphere made the event meaningful and fun.”

Sixty Plus ambassadors worked with Professor Emerita L. Patricia Mock and the Stone Community Outreach project to provide free legal information to local elderly residents.

“The Juneteenth Celebration was definitely a cultural experience. It was packed with art, music, entertainment and amazing food. I enjoyed talking with individuals of all ages and of diverse walks of life. I was able to share one of my many passions – educating people about what we do at the Sixty Plus Clinic. The Juneteenth Celebration was a wonderful experience and I am happy that I was able to participate this year,” shared WMU-Cooley law student Khadija Swims.

“It was a mighty privilege to participate in the Juneteenth celebration. Being a Texan transplant from Alabama, and having only experienced the Texas-styled Juneteenth, the Lansing shindig was fun,” exclaimed weekend WMU-Cooley law student Stephanie Samuels. “I especially enjoyed the music, and it was a pleasure to work the booth with fellow students and Professor Mock, and to meet and share fellowship with the Lansing celebrants this year. I’m sort of a history geek and loved to share with anyone who would listen, the interesting, “did-you-know” and “better-late-than-never” stories about how Juneteenth celebrates the end of slavery in the United States. I usually got a “I didn’t know that” reaction to my explanation,” stated Samuels.

“Juneteenth is a celebration of a turning point in liberation where freedom begins to have more meaning and gives us a deep appreciation for those who have struggled in the past to bring us out of bondage,” said Rev. Dr. Melvin T. Jones, pastor of the Union Missionary Baptist Church in Lansing. “It’s really a celebration of life, especially African American life in this country.” Dr. Jones added that for children, “Juneteenth is an opportunity to peel back to the days before Martin Luther King, Jr. and look at those people from history whose shoulders we stood on, and on whose shoulders we stand, as it relates to what our freedom is all about,” he added.

It is fitting that, as we honor all workers with Labor Day, that we also honor the landmark events in history that make this possible for everyone. As Juneteenth attendee Jean Davis stated, “we need to remember the struggles our forefathers went through so we could have the privileges we have today.”

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Incubators are for chickens, aren’t they?

It has become very popular for law schools to establish “incubators” or “accelerators” for their grads. Accelerators tend to be less resource intensive with external support services. Incubators tend to offer greater on-site physical and logistical support. They tend to be more resource intensive for the providers. Their goals are admirable but, in my opinion, misdirected.

Incubators are for chickens, aren’t they?

Incubators are for chickens, aren’t they?

Benefits of Many Incubators

  • They often provide low cost or no cost services to the community
  • They help grads become familiar with systems approach to practice management
  • They delay entry into practice for those who are not equipped to succeed until they are better prepared
  • They foster good public relations for the institution

Problems of Many Incubators

  • They delay the graduates entry into independent business practice models
  • Incubators are limited in the number of students that they can support
  • Participants often obtain reduced compensation for their legal services
  • Most incubators control where those graduates practice initially
  • Many confine graduate’s subject matter practice options
  • They encourage continued dependency on the law school when the business environment requires independent judgment and ability to assume risk

Those lists are not exhaustive and, of necessity, they are generalizations. Incubators take many forms and are numerous and very diverse. But a common thread is the attempt to help their participants get a better sense of how to implement the doctrinal component of their legal studies in a practical and business oriented office setting with many support services and a safety net.

They are offered to foster greater success for those who wish to go solo who may not have secured employment as yet. Some provide ancillary support, while others have full-blown office environments where those graduates may practice law until they are ready to go it “alone.” Very often, they are promoted as serving the community, since many of them offer “pro bono” or “low bono” services to members of the community where these exist. Many have terms of service from 6 to 18 months.

There is a better way, in my opinion, which has greater utility for a greater number of graduates. It allows them to hit the ground running without delay even before they pass the bar. It is just one component of a complete strategy designed to better prepare students for the realities of practice upon graduation. What follows is just one component of a series of techniques that I have used for a number of years. I call this program “Solo By Design™.” But, there are other support services which I have used to help students in law school, and after law school, to succeed on their own. Graduates establish themselves with realistic and achievable goals in the community, where they intend to establish themselves upon graduation.

The Foundational Elements of the Program “Solo By Design ™” follow:

While in law school, I send them into the field – at a minimum, they must;

  • Identify the geographic location where they intend to practice and there,
  • If possible, interview solos who are of the same ethnic background and gender,
  • Interview some attorneys who are solos with greater than 10 years in practice,
  • Interview some attorneys who are solos with less than 3 years in practice, and
  • Interview local judges and court clerks.
  • They are armed with reference materials for background about the latest technology and practice management techniques.
  • They are provided a list of questions for them to use in those interviews.
  • They meet with other enrolled students in groups to share what they found as each one develops their own unique business plan, given the information gained through those interviews.
  • Finally, they prepare a business plan, based upon the recommendations of those they interviewed.

This is just one component of a complete system that I have not explored entirely in this post . . . there is much more to it. But this is one essential component to success for graduates after graduation.

I believe that the best way to prepare law students for the preparation of practice after graduation should occur while those students are still in law school through in-house, live-client clinics paired with external placements in externships where they plan to establish their practice. They also need classes to train them in accounting for lawyers, entrepreneurship and thorough and independent research in their own business start-up as identified above through “Solo By Design™.”

That way they can learn the practice principles that help them learn to collaborate and gain the confidence necessary to practice law immediately upon graduation. They have a business plan that they can employ taking advantage of the local relationships that they have already developed while still in law school with earnings that help them pay off their student loans. Their greatest fear of going into business for themselves will not be realized with the “training wheels” of incubators.

Since 1999 we have worked diligently to support students who wish to go solo or into small firm environments. This has been a work-in-progress. We have taken steps to help our graduates establish themselves in the business of law long before the idea of “incubators” became popular. Solo By Design™ has evolved to adapt to the many changes that have occured in the practice of law since our focus began 17 years ago. It has evolved to address the tremendous changes in technology and the economic downturn which has affected many graduates in their attempt to find employment

This is just part of what I do to help them help themselves and have a support system while in law school which continues after they graduate. It helps them develop realistic strategies for success in practice in the geographic area where they intend to practice. They also identify areas of practice which have potential as profit centers in their community with good earning potential. They also establish “relationships” (code for mentors) in the community where they intend to practice. Those are the true sources of information and support who will be valuable resources providing the type of support to help them succeed without delay upon passing the bar.

WMU-Cooley Professor Gary Bauer

WMU-Cooley Professor Gary Bauer

The author, Professor Gary Bauer has been a member of the full-time faculty at WMU-Cooley Law School since 1998. He now teaches Estate Planning to third-year law students and a directed study class he created called Solo By Design. His blog,sololawyerbydesign.com, provides law students, recent solo practioners, and seasoned professionals who wish to go solo, with information and resources to be successful in the legal business. This blog post was first published on October 21, 2015.

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Prof. Joe Kimble Is Right: In Legal Drafting Use the Word “Shall” at Your Peril

Robb PhotoJames D. Robb is Associate Dean of External Affairs and General Counsel at WMU-Cooley Law School.  

 

How often do you find the word “shall” in a contract or legislation you are reviewing? Have you wondered what precisely that word means? Or what the parties or legislature actually intended? Is “shall” a promise? Is it a command? Is it a declaration of determination? Is it a permissive term? Is its use clear to you?

Does it mean “must” as in a contractual promise?

 Seller shall maintain the property in good condition until closing.

Does it mean “will” as in a statement of future intent?

  I shall stop at the store on the way home from work.

Is it a statement of determination?

  I shall return!

Does it mean “may”?

  No pedestrian shall enter the intersection against the red traffic light.

Is it an invitation?

  Shall we go?

Obviously, the word “shall” has many meanings depending on the context. And often that context is clear. But consider what happens if the word shows up in a contract and is construed by a reviewing court to be ambiguous.

In fact, sloppy use of the word “shall” in a contract can be disastrous because a court that finds it ambiguous will construe it against the drafter. Our own Distinguished Professor Emeritus Joe Kimble, a leader of the plain language movement and one of the deans of America’s legal writing instructors, has pointed out how drafters use “shall” mindlessly. He has warned us that courts “read it any which way.” A recent important case bears him out, and even quotes him on the point.

In Orthopedic Specialists v. Allstate Insurance Company,  No. 4D14-287  (Fla. Dist. Ct. App.) (August 19, 2015), the Florida Court of Appeals held the word “shall” to be inherently unclear and ambiguous, particularly when used in the phrase “shall be subject to.” The court then construed the word against the insurer that wrote a policy for personal injury protection. Professor Kimble’s warning is quoted with approval in footnote 3 of the concurring opinion.

My abridged version of the Oxford Universal English Dictionary, published in 1937, devotes 23 column inches─more than two thirds of an entire page of blindingly tiny print─to the definition of “shall.”  That alone might suggest the word can be troublesome for those who need to draft with precision.

On a larger scale, Professor Kimble’s great book, Writing for Dollars, Writing to Please, demonstrates the undue cost and expense associated with forbidding, verbose, and unclear writing. I recommend it to you. In performing your own legal work, take his advice:  be precise. Write clearly and to the point. And when tempted to use “shall,” think again. Perhaps the words “must,” “will,” or “may” will more clearly, and more safely, express your intent.

Writing for Dollars, Writing to Please by Joseph KimbleProfessor Joseph Kimble

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